END USER LICENCE AGREEMENT
This EULA governs the supply and use of the Platform Xplor may make available to You. The Platform may be accessed via the Website or via a device You own or use. By installing and/or using the Platform by any means, You agree to the terms of this EULA and You enter into a binding legal Agreement with Xplor. It is therefore important that you carefully read this EULA. By installing and/or registering to use the Platform You acknowledge that You have read and understood this EULA and that You have the authority to enter into a legal agreement with Xplor on Your own behalf and also on behalf of any person You may authorize to use the Platform.
Confidential Information includes all information exchanged between the parties to this EULA, whether in writing, electronically or orally, in relation to the Services but does not include information which is, or becomes, publicly available other than through unauthorised disclosure by a party.
any data concerning You or Your Invited Users which Xplor reasonably requires to provide the Services; and
any data that You, Your Invited User, a School or any person with Your authority inputs into the Platform via the Website or via any other means.
EFA means the equipment and fee agreement pursuant to which Xplor makes the Platform and associated goods and services available to the School and which enables Xplor to make the Platform available to You pursuant to this Agreement.
EULA means these terms and conditions as amended from time to time.
Invited User means any person or entity other than You who uses the Services at Your request or with Your authorisation.
IPR means any patent, trade mark, service mark, copyright, moral right, right in a design, know-how and any other intellectual or industrial property rights, anywhere in the world whether or not registered.
Marks means any name, logo or trade mark owned by, or licensed to, Xplor.
Pilot Period means the period commencing on the date of this Agreement and ending 31 March 2017 or such later date as may be notified to You.
Platform means the software platform made available to You by Xplor via the Website or such other means as Xplor may determine from time to time and which is known as ‘Xplor’ or by such other name as Xplor may determine from time to time.
Profile Panel means the section accessible by You within the Platform and which section contains details relating to You, and/or Your Invited Users and/or School.
School means the school in connection with which You are using the Platform and which school has a current EFA with Xplor.
Services means any, or all, of the Platform, Website or associated goods and services Xplor makes available to You from time to time pursuant to this EULA and includes reasonable set-up, training, and support relating to the Services.
Term means from the date of acceptance of this EULA by You and until the first to occur of the following:
the Pilot Period ends;
You cease to be provided with access to the Platform by the School for any reason;
the School ceases to pay, or enter into arrangements for the payment of, any fees owing to Xplor in respect of the Services provided to You; or
this EULA is terminated in accordance with clause 11.
Website means the website accessible at the domain www.myxplor.com or such other site as Xplor may determine from time to time.
Westpac Solution means the payment solution provided to You, Your Invited Users and/or the School by Westpac and which is known as ‘PayWay’ and any associated software/hardware provided by Westpac.
Xplor means MyXplor Pty Ltd ACN 604 322 910 or otherwise its advised related entities from time to time.
You means the person who registers to install and/or use the Platform and who, by so doing, accepts this EULA.
- 1.Acceptance of EULA
By downloading, installing or using the Platform (whichever comes first) You accept the terms and conditions of this EULA. If You do not accept the terms and conditions of this EULA, You must not download and/or must not install or use the Platform and must delete the Platform from any device You own or use.
- 2.Rights to use the Platform
Upon acceptance of this EULA by You, You are granted a revocable, non-transferable, non-exclusive and limited licence to use the Platform for the Term for Your personal use only and strictly in accordance with this EULA.
You may install and use the Platform on your personal computer and electronic devices.
Subject to clause 4, You must not share the Platform or any part of it with others or in any way share the licence granted to You without the prior written consent of Xplor.
You agree that Xplor may, upon reasonable notice to You, audit Your use of the Platform for compliance this EULA. In the event that such audit reveals any use of the Platform by You otherwise than in compliance with this EULA, You shall reimburse Xplor for all reasonable expenses related to such audit in addition to any other liabilities, or loss of revenue, Xplor incurs as a result of such non-compliance.
You must not, in relation to the Platform or any part thereof:
make or distribute copies of the Platform, or electronically transfer the Platform from one computer to another or over a network;
alter, digitize, merge, modify, adapt or translate the Platform, or decompile, reverse engineer, disassemble, or otherwise reduce the Platform to a human-perceivable form;
sell, transfer, rent, lease, licence or sub-licence the Platform;
attempt to undermine the security or integrity of Xplor’s computing systems or networks or, where the Platform is hosted by a third party, that third party's computing systems and networks;
use or misuse the Platform in any way which may impair the functionality of the Platform or Website, or other systems used to deliver the Platform or impair the ability of any other user to use the Platform or Website;
attempt to gain unauthorised access to any materials other than those to which You have been given express permission to access or to the computer system on which the Platform are hosted;
transmit, or input into the Website or Platform, any files that may damage any other person's computing devices or software, content that may be offensive, or material or data in violation of any law (including data or other material protected by copyright or trade secrets which You do not have the right to use);
broadcast, transmit or otherwise display in a public forum the Platform;
post the Platform on any website;
assign and/or novate any rights or obligations created by this EULA;
modify the Platform or create derivative works based upon it;
use the Platform for commercial purposes other than the purpose for which it is supplied to You; or
use the Platform to develop any product having the same primary function as the Platform.
You acknowledge and agree that:
the Platform may include technical inaccuracies or errors; and
any person/entity permitted to make changes to the Platform (including Xplor or any other supplier of the Platform or any part of them) may make improvements or other changes in the Platform at any time.
The provision of, access to, and use of, the Platform is on an "as is" basis and You access and use the Platform at Your own risk.
Xplor does not warrant that the use of the Platform will be uninterrupted or error free. The operation and availability of the systems used for accessing the Platform, including public telephone services, computer networks and the internet, can be unpredictable and may from time to time interfere with or prevent access to the Platform. You agree that Xplor is not in any way responsible for any such interference or prevention of Your access or use of the Platform.
Xplor is not providing you with accounting or other professional services and the provision of the Platform to You does not in any way constitute such services, and You agree that You will retain such professional advice as You may require from time to time.
You are solely responsible for determining that the Platform meets Your needs and that it is suitable for the purposes for which it is used by You.
You are solely responsible for complying with all applicable accounting, tax and other laws as they pertain to You and use of the Platform by You. It is Your responsibility to check that storage of, and access to, Your Data via the Platform and the Website will comply with laws applicable to you (including any laws requiring you to retain records).
Xplor has no responsibility to any person other than You and nothing in this EULA confers, or purports to confer, a benefit on any person other than You. If You use the Platform or access the Website on behalf of or for the benefit of anyone other than You, You remain responsible for ensuring that You have the right to do so.
- 4.Invited Users
Subject always to Your compliance with this EULA, you may invite Invited Users to use some or all of the Services.
You are responsible for all Invited Users’ use of the Services.
- 5.Usage Limitations
Use of the Services may be subject to such limitations as Xplor may advise from time to time, including but not limited to monthly transaction volumes and the number of calls You are permitted to make using the Services.
Your Data remains Your property.
In consideration of Xplor providing the Services to You, You hereby grant to Xplor a non-exclusive licence to use, copy, transmit, store, and back-up the Data for the purposes of enabling You to access and use the Services and for any other purpose related to provision of Services to You.
You must maintain copies of Your Data. Xplor does not make any guarantees that there will be no loss of Data and, to the extent permitted by law, expressly excludes liability for any loss of Data regardless of how the loss occurs.
If You enable third-party applications for use in connection with the Platform, You acknowledge that Xplor may allow the providers of those third-party applications to access Your Data as required for the inter-operation of such third-party applications with the Platform. Xplor shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by third-party application providers.
You are authorised to access the Data that You input into the Platform including any information or Data input into the Platform by any person you have authorised to use the Platform.
You are responsible for authorising any person who is given access to Data You input to the Platform, and You agree that Xplor has no obligation to provide any person access to such Data without Your authorisation and may refer any such requests to You for determination by You.
You indemnify Xplor against any claims or loss relating to:
- (a)Xplor’s refusal to provide any person access to Your information or Data in accordance with these Terms; and
- (b)Xplor’s making available information or Data to any person with Your authorisation.
- 7.Links to third party sites
You may link to third party sites through the use of the Platform. The third party sites are not under the control of Xplor and Xplor is not responsible for the content of any third party sites, any links contained therefrom, or any changes or updates to third party sites from time to time.
Xplor is not responsible for any form of transmission received from any third party sites.
Any link to a third party site from within the Platform is provided for convenience only and the inclusion of any such link does not imply an endorsement of the site, or its content, by Xplor.
- 8.Additional content, services and/or updates
The terms and conditions of this EULA apply to any updates, supplements, add-on components, or internet-based service components of the Platform that Xplor may provide to You or make available to You after the date You obtain/use your initial copy of the Platform, unless Xplor provides other terms along with the update, supplement, add-on component, or internet-based service component.
- 9.Intellectual Property
Title to, and all IPR in, the Platform, the Website and any documentation relating to the Platform remains the property of Xplor (or its licensors) and nothing in this EULA operates to grant You any IPR in the Services or any part thereof.
You must not remove or modify any copyright notice on the Platform nor register or attempt to register any IPR in the Platform, Website, and aspect of the Services or any derivation thereof.
You must not use any Marks without the prior written consent of Xplor or register or attempt to register rights in relation to the Marks, any derivative of the Marks, or anything similar to them..
You must use Your best endeavours to ensure that the Platform is at all times protected from access, use or misuse, damage or destruction by any person not authorised to use the Platform pursuant to this EULA.
You must ensure that all usernames and passwords required to access the Platform are kept secure and confidential. You must immediately notify Xplor of any unauthorised use of Your passwords or any other breach of security, whereupon Xplor may reset Your password and You must take all other actions that Xplor reasonably deems necessary to maintain or enhance the security of Xplor’s computing systems and networks and Your access to the Platform.
You may terminate this EULA by notice in writing to Xplor or via the Profile Panel in which case the termination takes effect at the end of the month in which You terminate.
Xplor may exercise any of its rights under clause 11.3 if:
in relation to a breach capable of remedy, You fail to remedy such a breach of this EULA by You or Your Invited User within 14 days of notice of the breach;
You or Your Invited User commit a breach that is not capable of remedy; or
the School ceases to be provided with access to Services (as provided by Xplor to the School) for any reason.
Upon the occurrence of any event in clause 11.2, Xplor may:
iimmediately terminate this EULA and use of the Services by You or Your Invited Users;
suspend for any definite or indefinite period of time use of the Services by You or Your Invited Users; and/or
On termination of this Agreement, You must:
Upon the occurrence of any event in clause 11.2, Xplor may:
immediately cease to use the Services;
delete all copies of the Platform installed on any device You own or use.
- 12.Warranties and liability
Xplor hereby excludes all express and implied conditions and warranties in relation to the Services and this EULA except those conditions or warranties that cannot be excluded by law.
Nothing in this EULA is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or any equivalent Act of any State or Territory of Australia except to the extent permitted by such Acts.
To the absolute extent permitted by law, Xplor will not be liable to You or Your Invited Users or any other person for any liability, loss or damage of any kind (including but not limited to any loss of actual or anticipated profits, revenue, savings, business, opportunity, access to markets, goodwill, reputation, publicity, or use) arising directly or indirectly from or in connection with this EULA or use of the Services by You or Your Invited Users.
In the event that Xplor’s liability cannot be wholly excluded, and to the extent permitted by law, its liability under this EULA shall be limited to:
the replacement of the Services;
the cost of having the Services replaced.
You hereby acknowledge and agree that Xplor shall not be liable to You or Your Invited Users or any other person for any liability, loss or damage of any kind (including but not limited to any loss of actual or anticipated profits, revenue, savings, business, opportunity, access to markets, goodwill, reputation, publicity, or use) arising directly or indirectly from or in connection with the failure by any means of the Westpac Solution.
You warrant to Xplor that:
You have the authority to grant the licence pursuant to clause 6.2 of this EULA;
You have attended to all backups, and have maintained copies of, Your Data and You acknowledge that Xplor is not responsible for attending to any such backup obligations;
the use by Xplor of the Data will not result in any unauthorised use of the rights of any person; and
You have the authority to agree to the terms of this EULA on behalf of Your Invited Users and You acknowledge and agree that, by registering to use the Platform, You bind Your Invited Users to the performance of any and all obligations that You become subject to by virtue of this EULA without limiting any obligations of You under this EULA.
You hereby indemnify Xplor, its directors, employees, contractors and agents from and against all damages, losses, claims and expenses arising from:
an act or omission by You in breach of this EULA which causes or contributes to Xplor breaching its obligations with any third party; or
use of the Platform by You, including but not limited to, any modification of the Platform by You (whether done with Xplor’s consent or otherwise) which causes the Platform to infringe the IPR of a third party.
- 14.Technical Problems
In the case of technical problems with the Services You must make all reasonable efforts to investigate and diagnose problems before contacting Xplor. If, after taking steps to resolve the issue, You still require assistance, you may contact Xplor via one of the following means:
telephone 1300 014 428;
email to email@example.com;
web support accessible at http://myxplor.com/support; and
such other support channels as Xplor may advise from time to time.
Xplor may require You to install such upgrades and supplements to the Platform as may be reasonably required from time to time.
Xplor shall have no obligation to provide support for any version of the Platform for which You have not complied with clause 14.2 or for which Xplor has issued an end-of-life notification at least 3 months prior.
- 15.Service availability
Whilst Xplor intends that the Services should be available 24 hours a day, seven days a week, it is possible that on occasions the Services or Website may be unavailable, including to permit maintenance or other development activity to take place.
Xplor will use its reasonable endeavours to publish in advance on the Website or by other means as Xplor may determine details of any known significant outages or interruptions to the Services.
- 16.Updates and amendments
You acknowledge that from time to time and as Xplor determines it necessary or desirable to do so Xplor may update any aspect of the Services.
You acknowledge that, in the event of an update of any aspect of the Services or for such other reasons as Xplor may determine, Xplor may make reasonable amendments to this EULA to give effect to, or properly accord with, the Services from time to time and You hereby agree to accept such amendments.
Any amendments by Xplor pursuant to this clause may be advised to You in writing including via the Website, the Platform and/or the Equipment and shall take effect 14 days from the date of such notice unless You communicate to Xplor an objection to the amendments.
If You use any communication tools available through the Website (such as any forum, chat room or message centre), You agree only to use such communication tools for lawful and legitimate purposes. You must not use any such communication tool for posting or disseminating any material unrelated to the use of the Platform, including (but not limited to):
offers of goods or services for sale;
unsolicited commercial e-mail;
files that may damage any other person's computing devices or software;
content that may be offensive to any other users of the Platform or the Website; or
material in violation of any law (including material that is protected by copyright or trade secrets which You do not have the right to use).
When You make any communication on or via the Website, You represent and warrant that You are permitted to make such communication. Xplor is under no obligation to ensure that the communications on the Website are legitimate or that they are related only to the use of the Platform. You hereby agree to exercise caution when using the communication tools available on the Website.
Xplor hereby reserves the right to remove from the Website any communication at any time in its sole discretion.
Unless the relevant party has the prior written consent of the other or otherwise required by law, each party will preserve the confidentiality of all Confidential Information of the other. Neither party will, without the prior written consent of the other, disclose or make any Confidential Information available to any person, or use the same for its own benefit, other than as contemplated by this EULA.
- 19.General Conditions
This EULA (and, if you are a party to it, the EFA) constitutes the entire agreement between You and Xplor relating to the Services and it supersedes all prior agreements, representations (whether oral or written), and understandings between Xplor and You relating to the same.
The failure, delay, relaxation or indulgence on the part of a party in exercising, in part or whole, any power, right or remedy conferred upon that party by this EULA shall not operate as a waiver of that power, right or remedy.
Xplor may assign its rights under, and/or novate, this EULA at any time by notice in writing to You.
All rights not specifically granted in this EULA are reserved by Xplor for itself and/or its suppliers.
Any notice given under or pursuant to this EULA by either party to the other must be in writing by email and will be deemed to have been given on transmission. Notices to Xplor must be sent to firstname.lastname@example.org or to any other email address notified by email to You by Xplor. Notices to You will be sent to the email address You have provided to Xplor as part of Your registering to use the Platform or as otherwise advised and confirmed by Xplor.
If any term of this EULA is invalid or not enforceable by a court of competent jurisdiction, it is to be read down and shall otherwise be capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of this EULA.
All amounts expressed in this EULA are exclusive of GST. The recipient of a taxable supply under this EULA must pay to the supplier of the supply the GST in connection with the supply in addition to the consideration for the supply.
Any clause of this EULA that is by its nature intended to survive termination does so.
This EULA is governed by and is to be construed in accordance with the laws in force in Victoria. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria and waives any right to object to proceedings being brought in those courts or courts of appeal therefrom.